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State v. Varela

Court of Appeals of Arizona, Second Division

July 12, 2018

The State of Arizona, Respondent,
v.
Artemio Hernandez Varela, Petitioner.

          Petition for Review from the Superior Court in Pinal County No. S1100CR201400054 The Honorable Joseph R. Georgini, Judge

          Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent

          Artemio H. Varela, Kingman In Propria Persona

          Chief Judge Eckerstrom authored the opinion of the Court, in which Judge Eppich and Judge Brearcliffe concurred.

          OPINION

          ECKERSTROM, CHIEF JUDGE

         ¶1 Petitioner Artemio Varela seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Because Varela has established a colorable claim of ineffective assistance of appellate counsel, we grant relief in part, but otherwise deny relief.

         Background

         ¶2 After a jury trial, Varela was convicted of three counts of sexual abuse and sentenced to consecutive, 2.25-year prison terms for each offense. He timely appealed, but this court later dismissed that appeal pursuant to Varela's motion.

         ¶3 Varela sought post-conviction relief, arguing in his petition that he had received ineffective assistance of trial counsel in that counsel had not investigated the scene of the offense or called "a key witness" and appellate counsel had "dropped the ball on Direct Appeal." The trial court summarily denied relief, finding that Varela's claims were precluded, untimely, or "lack[ed] sufficient basis in law and fact to warrant further proceedings."

         Discussion

         ¶4 On review Varela argues his claims were not precluded or untimely, and the trial court erred in summarily denying relief. Because this is a first, timely proceeding, we agree with Varela that his claims of ineffective assistance of counsel are not precluded or barred as untimely. See Ariz. R. Crim. P. 32.2(b), 32.4(a)(2)(A), (D).

         ¶5 We agree with the trial court, however, that Varela has not presented a colorable claim of ineffective assistance of trial counsel. In his petition for review Varela points us to his petition for post-conviction relief, apparently attempting to incorporate his arguments there by reference. This procedure is not allowed. See Ariz. R. Crim. P. 32.9(c)(4)(B), (5)(A) (petition for review must contain "reasons why the appellate court should grant the petition," but shall not "incorporate any document by reference, except the appendix").

         ¶6 Furthermore, "[t]o state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). To show prejudice, a defendant must demonstrate there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

         ¶7 Varela contended his trial counsel lacked diligence in "the investigatory part of this case and the calling of witness [es] who would have given exculpatory testimony corroborating his innocence of the offense." He alleged counsel failed to review surveillance footage and failed to ...


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